Copyright In The Editing Of Music

Steagall

\

I

*

COPYRIGHT IN THE EDITING OF MUSIC

by

Louis Charles Sirith

Senior Attorney of the
U. S. Copyright Office

The Library of Congress

Washington, E. C.

COPYRIGHT IN THE EDITING OP MUSIC

* INDEX Page

f STATEMENT of the facts

Purpose of the study 3

History of the Copyright Office practice in regard. .

to the editing of music Ij,

Applicable constitutional and statutory provisions.. 6

CERTAIN PROBLEMS CONFRONTED IN THE STUDY OF THE SUBJECT

The need of an authoritative and all inclusive

definition of the term editing 7

Copyright in editing of music never an issue in the

federal courts.... 9

ARGUMENTS IN SUPPORT OF COPYRIGHT IN EDITING

Editing of music is the writing of an author 11+

Editing of music promotes the progress of science

and the useful arts 19

> >

The Copyright Act extends copyright to all the

writings of an author 22

ARGUMENTS AGAINST COPYRIGHT IN EDITING

The Copyright Act provides no classification for the
editing of music and the Gopyright Office rules
and regulations make no provision for the regis-

tration of copyright claims to such work 2lp

Editing of music is not creative work 26

Editing is not musical composition 31

*

The use of the copyright notice upon works in the

public domain misleads the public 3^4-

CONCLUSIONS 39

1

r

2

Index (Continued)

*

APPENDIX ; Page

i

I. AUTHORITIES LISTED

Cases 1+1

Statutes 1+1, 1+2

Miscellaneous* 1+2

II . BIBLIOGRAPHY ON COPYR I GHT . 1+ 3

III. ILLUSTRATIONS OF EDITED MUSIC , I 4 J+

Beethovens’ s "Sonate Pathctique" ij-5

Chopin’s "Prelude No. 6 , B minor". I 4.6

IV. EXCERPTS PROM THE WRITINGS OP AUTHORS ON SUBJECTS

HAVING REFERENCE TO THE EDITING OF MUSIC

1. Music editing is a form of writing in the

nature of shorthand 1 + 7 » Aj -8

2. Editing of music is created by the intel-

lectual labor and skill of an experienced
and accomplished musician ij. 9 , $0

3. Editing of music is useful, both in the

study of a composition and in its

rendition 5 1_ 55

i

f

COPYRIGHT IN T-HE EDITING OF MUSIC

Purpose of the Study

The purpose of this study is to determine whether the
Copyright Office should change its rule that the mere editing

t

of music is not provided for in the Copyright Act. The rule
has not only cast a doubt upon the copyright ability of such
editing but has resulted in the rejection of applications for
the registration of copyright claims to the editing of music.
The conclusion that will be reached in this study is that the
rule and the practice of the Office under the rule have no
sanction in law. It will be shown that the rule should be
removed from the Office regulations and that claims to editing,
in whatever legible and visible form, should be registered for
the following principal reasons:

1. Editing is the writing of an author which promotes
the progress of Science and the useful arts.

2-, Editing of music is the result of creative intel-
lectual labor which produces, a visible expression of the ideas
in the mind of an author in regard to interpretation, direction
and instruction in the study or rendition of a musical composi-
tion.

5 * There is nothing in the Copyright. Act or the cases
interpreting it requiring the exclusion of editing of music
from copyright.

History of the Copyright Office practice

in regard to the editing of music

Musical composition as a distinct class of work subject
to copyright was specifically provided for the first time under
our law in the Act of I83I. At no time, however, did any act
mention in precise terms that species of work which the Copy-
right Office recognizes in its rule as mere editing of music
which is ”not provided for in the Copyright Act”. Section 6
of the present Act of 1909, however, does provide for copyright
in arrangements and other new versions of musical compositions.
Examination of the Office records discloses that copyright
claims to edited music were registered prior to the Act of
1909, but Section 6 , in conjunction with other sections of
that Act, placed the Office in a better position to justify
registrations made after the Act went into effect, July 1 ,

I9O9 It was not until 1927 that the rule rejecting editing
of music as copyrightable matter was first published.

A general survey of the Copyright Office files of the
decade immediately preceding 1927 shows that on numerous
occasions a considerable amount of controversial correspondence
on the question of editing of music was engaged in' between the
Office and applicants, in the main large publishers of music,
The then Register of Copyrights, Mr. Thorvald Solberg, was of
the opinion that copyright could not be obtained for that class
of work and in 1927 he amended the Office rules and regulations

• - 5 -

to include the statement that, "Mere transpositions into dif-
ferent keys, 'editing’, 'fingering’, or 'phrasing' [of music], ,

C. 0. Bull. No. 15 (1927) Buie 10.

are not provided for in the Copyright Act",/ After the amend-
ment became effecti ve , however , applications for registration
of copyright claims to edited musical compositions were accepted
if they contained in substance the following limitation of claim:
"Copyright is not claimed in the original composition, and the
exclusive right of publid performance is not claimed for this
edition, but copyright is based on new matter by John Doe,
namely, his interpretation represented in the legible notation
thereof contained in the copies". During the period of the

V

next ten years this form of application seems to have been
used for edited musical works.

Col. Clement L- Bouvd became Register of Copyrights in
1936. Within a year he reopened the whole problem and after
a thorough examination of the practice and the rules of the
Office, particularly during the period of the previous twenty

1

years, he concluded that registration of copyright claims to
editing could not be made even though the limitation of claim

mentioned in the preceding paragraph was used in the applica-

«

tion. Accordingly, and no doubt to fortify the position he
was taking, he -reworded the amendment of 1927 so that it redd
in 193B as follows: "Registration may also be made under this
section [Section 6 of the Act] of 'works republished with now
matter', but this does not include mere ' editing' , 'fingering',

6

or 'phrasing', [of music], which are not provided for in the
37 CFR 201.1* (b) (5),

Copyright Act," /Throughout Col. Bouvl's administration, un-
til he left Office at the end of , he consistently ad-
hered to this rule and refused to register both original and
renewal copyright claims to the editing of music.

Mr. Sam B. Warner, the present Register of Copyrights,
however, amended the rule so as to permit the registration
of renewal copyright claims based on editing. The amendment
reads: "Renewal copyright registration of a musical work
will be made when the application for the original registra-
tion used the word 'editing', or some similar term to describe
the copyright matter," 37 CFR Cum. Supp. 201.1* (b) ( 5 ).

The future policy to be followed concerning the registra-
tion of original claims to copyright in edited musical compo-
sitions has been studied for some time. .The present paper
has therefore as its purpose the discussion of the problem,
resulting from 3uch study.

Applicable Constitutional and Statutory Provisions

Article I, Section 8 , of the Constitution of the United
States provides that Congress shall have the power to promote
the progress of science and the useful arts, by securing for
limited times to authors the exclusive right to their writings.

The Copyright Act of 179° was enacted by the First Con-
gress. This Act and all later Acts, until the present Act of

- 7 -

*

I 9 O 9 , provided specifically the various classes of work^ in
which copyright might be had. In other words, only certain
writings were copyrightable. Section I4. of the present Act,
however, provides ’’That the works for which copyright may be
secured ...shall include all the writings of an author."
[Emphasis supplied]. It is true that Section 5 of the same
Act lists thirteen general categories of works in which copy-
right can be claimed, but Congress only included those classes
of works "for the convenience of the Copyright Office and
those applying for copyrights", as it stated in its committee
report on the bill enacting the law of I9O9. [H. R. Rep. No.

2222, 60th Cong., 2d Sess. (I9O9) 10], Congress, realizing
the possibility that in the administration of the Act regis-
trations might be held to the specific classes named, added
the following proviso to Section 5 30 that there could be no
doubt as to its intention: "That the above specifications
shall not be held to limit the subject-matter of copyright as
defined in section four of this Act, nor shall any error in
classification invalidate or impair the copyright protection
secured under this Act."

The need of an authoritative and all inclusive

definition of the term editing

The term "editing" is not reserved for exclusive use in
the field of literature though an examination of almost any
dictionary might lead one to such conclusion* It is usually
mentioned only in connection with the revision, correction.

selection, arrangement, annotation, etc., of text matter for
publication. In journalism it refers to the work of the editor
who superintends the publication of the paper, and directs its
editorial policies.

Editing, however, extends to other Holds and as such is
little known save to those whom it directly concerns. In
motion picture production after all the scones have beon record
od on film and the viork of the scenario writer, the director,
the actors and others has been completed, one of the most im- •
portant jobs is yet to be performed, that of the editor. The
procedure followed in the editing of a motion picture is a
factor which determines the extent of a film’s success. A
motion picture editor who does nothing more than cut out cer-
tain portions of a film nevertheless is editing the film, for
that term also includes the act of modifying by excisions,
curtailment, or the like. Ono can also edit a work of sculp-
ture. As applied to the production of bronze statuary, the
term has been used to designate the work of the founder who
casts the statuary from the clay model made by the artist. The
editing of a map is one phase of the work in the art of cartog-
raphy. Few, if any, worth whilo maps roach their final print-
ed stage until they have boon carefully edited by ono skilled
and experienced in the art.

In recent centuries there has developed the application
of a form of editing to music. The editing of music is pecu-
liar to its own needs, differing considerably from the form

- 9 -

of editing generally found in literature, and definitely un-
like the editing of motion pictures, maps and sculpture.

What then is editing of music? Briefly, the editor
attempts, by use of text or symbols, to show dynamics, finger-
ing, phrasing, bowing and the like, so that he can explain or
instruct how the music is to be played. He makes no changes
in the musical composition, except a rare correction of a note
erroneously misplaced or omitted by the composer. A true editor
clarifies by his experience, skill and labor the original work
of the composer. The thoughts of the editor are expressed in
writing when he places symbols in juxtaposition to the musical
notation or adds text matte#* to the composition, such as annota-
tions or prefatory statements, When the editor, however, act-
ually adds new music, such as arrangement, ho is, in addition
to being an editor, also a composer of music.

Copyright in editing of music never an issue

in the federal courts

A review of the copyright cases which have arisen before
the United States courts has not disclosed that there has
over been a determination of the question whether phrasing,
fingering, bowing, pedaling and other forms of editing of music
constitute the copyrightable writing of an author. There is
one English case, Boosey v. \jh ight [ 18 99 ] i Ch. 856 ;. [1900]

1 Ch. 122, which deserves thorough consideration.

10

Boosey & Co., tho plaintiffs, were the proprietors of the
copyright In the musical compositions alledgedly infringed.
Boosoy contended that the infringement by the defendant, Whight
consisted in the sale of perforated sheets of paper for use in
an instrument called the ''Aeolian 11 , which externally bore a
considerable resemblance to a piano, but was a wind instrument
worked mechanically, and furnished with stops, swells, and
pedals, by means of which changes in time and expression were
effected. These sheets were made in the form of rolls, and
when placed in the instrument were unrolled by its action.

They were so prepared that whenever a perforation passed under
a particular pipe and reed the appropriate note was sounded.

At the beginning of each roll was printed a statement as to
the key in which the piece of music was written. The rolls
contained no indications of any change of key which might occur
There were, however, printed on some of them, though not on
all, certain words which were found in the sheets of music
published by the plaintiffs, such as andante, moderato, piano,
crescendo, indicating the pace and expression at and with
which tho music ought to be played. These words were visible
to the player, and were intended for his guidance. If one of
these rolls wore introduced into the instrument, the music
wuld in ordinary course be produced at the same pace and
with the same degree of loudness; these were altered by the
use of the stops; and the skill of the player mainly consisted

11

in availing himself of these aids so as to produce the best
effect .

The plaintiffs contended that the perforated sheets in-
fringed their copyrighted sheets of music under the provisions
of the Copyright Act of l8ij 2 , in that the recording of music
by means of perforations was as much a copy as if it had been
done by ordinary notation and that the notes of the music
could be written out in ordinary notation from the perforations .
They pointed out the courts had recognized copies may be made
by methods other than printing, such as lithography, type-
writing, shorthand and "by the system of a notation employed
for the blind". The plaintiffs said it was immaterial whether
the agency which intervenes between the perforated rolls and
the sound was human or mechanical. They contended that "The
protection of the Act of l8i|2 extends to every record which
is capable of being translated into sound; it is not necessary
that it should appeal directly to the human intelligence. But,
assuming that to be necessary, that requirement is fulfilled
here by the existence in these rolls of the directions as to
time and expressions. Those words form part of the copyright
in the music of 'the songs."

The defendants argued that: "Thes§ rolls are not in-
tended to be used and read as records of symbols." The per-
forated roll was compared to a mechanical method of reproduc-
ing music such as the barrel of a musical box or hurdy-gurdy.

12

"The legislature only meant to include what at the date of
the Act of l8i|2 was known as a sheet of music." It was ad-
mitted by the defendants* counsel that it was quite possible
to prepare a key by which the notes corresponding to the per-
forations could be copied down, and, in fact, such a key had
been prepared and applied to . one of the pieces of music in
qtiestion. ' Nevertheless, it was contended that the rolls were
strictly part of a machine and could not be brought within
the scope of the Copyright Acts. With reference to the marks
of expression the defendant took the position that they were
not material. "They are merely directions to the player how
to manipulate the machine. The mere addition of the marks of
expression to that which is not in its essence a sheet of music
is not sufficient to bring it within the operation of tho Act."

The trial judge, considering the arguments presented,
reached the conclusion that the perforated rolls were not
copies of the sheets of music under the provisions of tho Act
of 181^2. The court, however, ruled for the plaintiffs and
held that the defendants had infringed the copyrights when
they printed the words indicating pace and expression upon
the rolls. The Court said; "in my judgment tho Act of l8 1|2,
fairly construed, does not prevent the defendants from making
or selling these rolls, so far as they contain perforations.

I think, however, that in adding to them words taken from the
plaintiffs’ music sheets, for the purpose of indicating to
the player on the instrument tho pace and expression at and

- 13 -

with which the music ought to be played, the defendants have
gone beyond their rights, and that there ought to be an in-
junction to restrain them from so doing.” Upon appeal the
Court uphold the ruling that the perforated rolls wore not
copies of the sheets of music. Today, under the British Copy-
right Act of 1911 protection is extended to perforated' rolls
and it has boon said that they are "copies” of a musical work.
(Copinger on the Law of Copyright, 7 th Ed., by P. E. Skone
James, 1936 , PS* 173) •

The trial court, however was reversed in holding that
the printing of the marks of expression upon the rolls con-
stituted an infringement of the music sheets. The appellate
court was of the opinion that; "The directions in the plain-
tiffs f sheets of music are no doubt protected by their copy-
right so long as they arc used in connection with their musi-
cal scores. But apart from those scores the plaintiffs have
no copyright in such directions. The directions are not in
themselves a 'sheet of music , 1 nor are they a 'sheet of letter-
press separately published,* Even if they wore, they would
bo mcro words, not sentences forming a literary composition
in which copyright could bo acquired.” The court further said:
"I think that no substantial part of the plaintiffs' book,
that is, of their printed musical sheets, has boon copied by
the defendants. So far as words have boon taken from the
plaintiffs' book and put on the defendants' shoots, they have

no use or connected meaning by themselves, and arc only of use
on the defendant’s shoots, in any practical point of view, as
directions for working the defendants’ mechanical instrument
to produce musical sounds.'*

The opinion of the appellate court in the Boosey v.

Whight case offers arguments both for and against the copy-
rightability of the oditing of music. The court did not pass
upon the copyrightability of editing, as such, but only reached
the conclusion that a player piano roll was not a copy of a
musical composition and that the directional markings upon tho
roll did not form "a literary composition", because they had
"no use or connected meaning by themselves." There is still
to be awaited a decision by oither an English court, under
tho provisions of the Copyright Act of 1911* or an American
court, under the provisions of the Copyright Act of I 9 O 9 , which
dotormincs whether oditing, when accompanied by a logiblc musi-
cal score, can in itself be tho subject matter of copyright.

ARGUMENT : Editing of music Is tho writing of an author

Tho symbols used by editors of music have already been
idontified by some writers as a form of shorthand in tho lan-
guage of music. A use of symbols for purposes of abbreviation
is not novel to music alone. The business world has long re-
cognized tho value of stenography in the officiont handling of
its correspondence, just as the reporter in tho legislative

- 15 -

chamber or court room finds it the most important tool he
possesses to perform his duties. A cable code book is a well
known means to cnablo ono to say in a few words what might re-
quire sovoral paragraphs. Yet the same thought is expressed
whether the message is in code or in lengthy text. Symbols
are widely used to convoy ideas in mathematics, physics, chem-
istry, and phonetics as well as other sciences and the arts.
Without the use of symbols the scientist would be at a loss
to convoy conveniently and clearly many of his ideas. The
editor of a modern dictionary would find it most difficult to
give the correct pronunciation of each word dofined if he wag
forcod to do so by explanatory text instead of the symbols
which he now uses. Equally difficult would be tho problom of
ono attempting to prosent his own original interpretation of
how each lino of a piece of poetry should be recited if he used
explanatory text instead of scansion signs to distinguish tho
metrical feet of the verse and points of emphasis or pause.

Thus the editor of music liko the scientist, the scan-
sionist, and others has adopted a set of symbols to convey
visibly and conveniently his ideas and thoughts as to how the
music should be interpreted by the player. And certainly he is
cntitlod to do so, for tho composer of the music, which is
edited/ has himsolf written his thoughts in notation foreign
to that of written language. Musical notes arc a form of
writing long recognized as a moans of conveying the composer's

16 -

musical ideas.

4

If these editing symbols are the shorthand of the lan-
guage the editor uses to express his thoughts then but one
conclusion can be reached that thoy arc the "writings" of an
author; just as no one could argue successfully that a speech
or work of literature transcribed by means of any systom of
decipherable shorthand was not a "writing". Shorthand is not
only tho compdndious and rapid method of writing which is
well known to all and by which the Office secretary can spoodily
take v dictation by substituting characters, abbreviations, or
symbols, for letters and wards; but it includes also any
similar system or instance of abbreviated notation.

Han’s accomplishments have been as varied as the manner
and means whereby he recorded them. The demotic symbols used
by the ancient Egyptians arc to us a strange form of writing,
Thoy developed those symbols as a simplification of their
hieratic characters, those having earlier roplaccd tho hiero-
glyphic, a writing composed mainly of pictures. Fantastic in-
deed have been some of the forms of writing used by man to
convey his thoughts in lasting visible form. A reproduction
of a beautifully docoratod and painted panel from a temple
of the Aztecs would to most people represent nothing more
than a painting of some great priest whose odd features and
dress are supplemented by an equally strange array of what
appears to be queerly drawn birds, snakes, etc. The scholar

17

of Aztec civilization mho could decipher each feature and
color of that panel would possibly give the complete, though
brief, history of the Aztec people for a particular calendar
year-.

.The term "writing 1 * today is not limited to the seemingly
% -

narrow scope of these illustrations; in fact, it is much broad-
er than the usual dictionary definition or that which could
have possibly been, conceived in the minds of tho framors of
the Constitution of the United Statos. It would indeed be
bold to stato that the members of tho Constitutional Convention
were thoroughly conversant with the progress of science which
was soon to produce tho art of photogrqphy. It was impossible
for those same mon^ save in their wildest imagination, to an-
ticipate tho invention of the motion picture which would be-
come an important "writing" in the economic and sooial life
of our civilization. Today, both photographs and motion pic-
tures are classed as writings in the copyright law.

The question as to whether a photograph could be a
writing came before the Supreme Court in the case of Burrow-
Giles Lithographic Co., v, Napoleon Sarony, 111 U. S* 53 » 5 ®
(I88I4,). Tho Cohrt decided in tbe affirmative. In interpre-
ting Art. I, Sec, 8, Cl. 8; of tho Constitution tho Court said;
"By ’writings* in that clause is meant tho literary produc-
tions of thoso authors, and Congress very properly has declared
those to include all forms of writing, printing., engraving.

- 18 -

etching, etc., by which the ideas in the mind of the author
are given visible expression”.

Science and art ever march forward to create now moans
for man to express his idoas in permanent record. The Supremo
Court's definition of a writing may yet be challenged if our
Congress enacts into law the extension of copyright protection
to the ideas of man recorded electrically upon a more strip
of wire or metal tape, in which no human eye or hand, by sight
or touch, could "visibly” note the existcnco of any "writings".
The ear alone in those cases could only have known to it the
interpretive work of the performing artist by the intervention
of a mechanical device'. But that need n6t be considered hero.

There appears to be no doubt, therefore, that the symbols
and words used by the editor can be temed "writing" when they
convey his ideas to those studying or .performing the music ho
* edits. But is such "writing" the writing of an author? Is
it original and creative?

Certainly the intellectual, labor of the editor which
creates his instructive and interpretative writings brings
his work within the Constitutional provision. In Charles M.

Higgins ot al. v. William D. Kouffol et al., li+O U. S. J+28 ,

»

ij.31 (I 89 I), the Supreme Court said, referring to the clause
of the Constitution under discussion, "This provision evidently
has reference only to such writings and discoveries as are the
result of intellectual labor."

19

Weil in his "American Copyright Law" (1917* PP* b%)
examines numerous court decisions' and concludes "that neither
literary or artistic merit, even in a minor degree, is required
to render a work copyrightable under the Constitution", Ho
states originality simply means that it is the result of the
intellectual labor, (that is, thought in a physio -psychological
sense) of the author who has "not consciously copied or repro-
duced, literally or colornbly, in whole, or in part, from any
other work or works; that the degreo of originality may be
’very moderate’;" and he finally concludes, "that the Courts
will deem nearly all writings, original in the sense just out-
lined, to bo calculated to promote the progress of science
and the useful arts, without evon casual critical examination
on the part of the Court."

»

ARGUMENT : Editing of music promotes the progress of

science and the uso'jUl arts

Editing of music is a broad term, a complete and satis-
factory definition of which is wanting as has already been
indicated.) It is possible for an editor to make an exhaustive
study of a pieco of classical music, carefully diagnosing oach
bar and lino wi th lengthy explanatory text and porhaps adding

i

for illustration comparative measures from other works, as
well as prefacing the work with a biography of the composer.
Usually, the editor does no more than to assist tho student

- 20

or accomplished musician in properly interpreting the music
as he believes the original composer intended it to be.

Many writers on the subject have pointed out the value

and usefulness of music editing. An understanding of the sym-

\ V

bols used in the editing of music was considered important as
early as I75I, "The Art of Playing on the Violin", by P.
Geminiani, published in that year, "contains all the Ornaments
of Expression, necessary to the playing in a good taste."

Thomas Jefferson's personal copy (now in the Rare Books Divi-
sion of the Library of Congress) bears a notation on page 8 ,
in his own handwriting, which demonstrates his unusual interest
in the value of the editing of music. Without the assistance
of the editor the student quite often would be at a loss to
execute a proper performance of the work. It is evident that
any such instructive information must be conveyed by means of
some visible notation such as words or symbols. It could be
done in every instance by explanatory text, but the playor
could not stop to read a sentence of instruction and at the
same time the notes without the music losing all its tempo.

"Music do I hear?

Hat hat keep time; --How sour sweet music is
When time is broke, and no proportion keptt”

— Richard II, Act V, sc. 5 *

Mother necessity blessed music editing with the develop-
ment of a language of its own, a form of shorthand consisting
of words and symbols to which reference has already been made.
Thus the musician by translating a mere word or symbol can

21

quickly know the ideas of the editor which might have other-
wise required a sentence or more to accomplish. Imagine what
a sheet of music would look like if burdened between each line
with several paragraphs of text to instruct how the measures
to which they applied should be played.

It is urged, therefore, that the function of editing in
the study and in the rendition of music promotes the progress
of science and the useful arts. Perhaps it is too fanciful
and exaggerated to suggest the work of the editor of music
promotes the progress of science. But it must be admitted
that whatever improves the rendition of music makes it all the
more desired by the listener. The greater the demand for music
the greater the need for the instrumentalities which mechani-
cally reproduce Itj and it 1 3 then that the mind of the in-
ventor, inspired by the profits awaiting him, seeks out im-
provements of those instrumentalities.

The war well illustrated the use of music in Improving
the morale of the vorker. Such promotion of the progress of
science and the useful arts can only be in tho sense that
psychologically and physiologically, a workor’s mind is said
to nood ro creation and rest to enable future Intellectual,
creative effort.

22

ARGUMENT : The Copyright Act extends copyright to

all the "writings of an author

The music oditor gives "visible expression" to his own
ideas of interpretation, direction and instruction in the form
of written symbols, whether they be marks or words. If it is
agreed that the editor's work is the writing of an author,
there still remains the question whether such writing can be
made the subject matter of copyright. While it is true that
the Copyright Act of I 9 O 9 provides that copyright may be se-
cured for all the writings of an author, nevertheless the
courts have ruled and text writers have pointed out that not
all writings are copyrightable . The writing can not consist
of but a single word. It must not be immoral, indecent, blas-
phemous, seditious, libellous, nor one where an intentional
deception or false pretense is contained in the work.

Shafter in his "Musical Copyright" (2d od. 1959 > Pg» 55) >
states that: "Boforo a work of any type can be copyrighted,
it must possess certain necessary qualifications. Theso are
form, quantity and quality (utility, merit, originality, good
taste) ."

Originality is tho attribute most necessary to a writing.
At the same time, absolute originality is impossible to obtain.
The editor who works independently and who doos not copy from
another is original in the expression of his own thoughts re-
sulting from his own labor and skill even though he appends

- 23 -

them to a vrork of an earlier author for the purpose of ex-
plaining, interpreting, etc. the earlier work. His "v/riting"

t

* )
even though original must, however, consist of some quantity.

It is impossible to state a general rule to identify what is
substantial and what is not. A gem of literature may be con-
tained in a couplet of poetry or in a sentence of prose.

Drone, in his ’’Law of Property in Intellectual Produc-

\

tion" (1879* Pg • 212) states: "How short a composition may be,
and still be a subject of copyright when published alone, has
not been definitely determined by the legislature or the courts".
That statement was made in 1879 when his work was published;

and an examination of later cases and works on copyright
affirms it. Shafter' s "Musical Copyright" (2d Ed., 1959# PP*

36, 37) comments: "Quantity is regarded as one of the quali-
fications on which no definite limits aro, or can be, placed,"
and, "The quantity is immaterial as long as the ’complete idea’
is expressed" (pp. 36 , 37 )*

Before the conclusion is reached from the foregoing that
editing of music is copyrightable matter and* hence a claim of
copyright to it is registrable in the Copyright Offico, It is
propor that consideration be given to arguments against copy-
right in editing of music.

t

- 2k -

ARGUMENT: The Copyright Act provides no classification
for the editing of 1 music "and the Copyright

Office rule's arid regulations make no pro-

vision for the registration of copyright
claims 'tso such work '

Section 5 of the Copyright Act of I 9 O 9 provides, "That
the application for registration shall specify to which of the
following classes the work in ifoich copyright is claimed be-
longs:" (and immediately thereafter are listed thirteen gen-
oral categories). The fact that some particular class of work
is not specifically mentioned does not provent registration,,
for that same section provides, "That the above specifications
shall not be held to limit the subject-matter of copyright
as defined in section four of this Act, nor shall any error
in classification invalidate or impair the copyright protection
secured under this Act". Section if. of the Act reads: "That
the works for which copyright may be socurod under this Act
shall include all the writings of an author."

Edited music was well known when Congress enacted the
present copyright statute. If editing of music is a copyright-

i

able writing of an author, certainly registration could not
be denied for want of classification.

The Register of Copyrights is authorized to make rules

#

and regulations for the registration of claims to copyrights,
subject to the approval of the Librarian of Congress. But
the very words of Section 53 °f the Act granting this authority
should in themselves be sufficient to remove all doubt that

#

- 25 -

Congress never intended to transfer to the Copyright Office
the power specifically given it in the Constitution to legis-
late substantive lav/ defining what writings of an author can
be protected by copyright. The delegation of power to make

rules for administrative purposes to carry into effect the

*

provisions of a statute does not include the power to change
the substantive law itself.

That Congress had no intention to give in the rule mak-
ing power anything more than would be roquired for the Regis-
ter of Copyrights to carry out his ministerial dutios is

deafly shown in the committee report of the House of Rcpresen
*

tatives in I 9 O 9 on the copyright bill which 'in the some year
was enacted into law. Commenting on Section 53 °f the bill

the committee said: "Section 53 provides for the making of

1

rules and regulations and does not confer upon the register
any Judicial functions!? [H. R. Rep. No. 2222, 60th Cong., 2d
Sess. (I 9 O 9 ) 20].

Hence, it follows, that no copyright office regulation
can be made which will have any sanction in lav/ if it denies
to an author any right which he possesses in his "writings"
under the provisions of the -Copyright Act now in force.

The rule making power given the Rogister of Copyrights
and the Librarian of Congress under the Copyright Act must go
no further than to make rules and regulations for the regis-
tration of claims to copyright, purely a matter administra-
tive in character and no more. Weil, in his "American Copy-

4

- 26 -

right Law*’, 1917 , P» 5^5 » points out that: "Tho narrow limits
of the power hero conferred, viz: to make rules for the regis-
tration of claims to copyright, should be borne in mind, in
reading the present Rules, some of which . . . appear to ex-
ceed the limits of the authority confprred, and to take quito

\ • * ' • '

an incorrect view of various sections of the -law.”

Congress in prior copyright acts limited copyright pro-

- ^ * 1 1 T " . _ Z . ’ . .. • * m <

tection to those classes of works whicty it specifically named
in each act. The present Act contains no such limitation for
it provides that the works for which copyright may bo secured
shall include ALL the writings of an author. .

If editing of music is tho writing of an author, the
present Copyright Office rule, that tho "editing'', "fingering"
or "phrasing" of music is not provided for in the Copyright
Act, is without foundation In law and absolutely in contra-
diction to the express provisions of the Copyright Act of 1909*

v

ARGUMENT • Editing of music is not creative work

It has already boon stated there never has been a case
before a United States court ,in which the point in issue was
the editing of music, nor has any authority been found which
holds that tho editing of music cannot be creativo work. It
appears to be in order at this point, however, to review the-
cases dited by the Register of Copyrights In his fbrty-fourth
annual report (covering tho fiscal year ending Juno JO, 191(1.).

- 27 -

Col. Bouvd attempted In that report to justify the position
which the Copyright Office had taken that the editing of music
was not a new and original writing of an author. It is im-
portant to note in each of the following casos that they dealt
with the question of new musical composition and not merely a
new version in some other' form of writing.

The earliest case cited was Jollie v, Jaquos, 1 Blatchf.
6l8 (I85O) Fed. Cas. Mo. 7^4-37* In that case the plaintiff
alleged that the defendant had infringed the • copyright in a
musical composition entitled "Serious Family Polka", a piano-
forte arrangement of an earlier German work composed for clari-
net. In reviewing the facts of the case the court said that
tho pianoforte version based upon the Gorman melody did not
come within the scope of the Copyright Act of 1831 because,

"The musical composition, * Serious Family Polka 1 , which was
allegedly infringed, did not come within tho Copyright Act of
1831 becauso, "The musical composition contomplatod by tho
statute must, doubtless, bo substantially a now and original
work; and not a copy of a >picce already produced with additibns

and variations, which a writer of music with experience and

* •

•skill might readily make." It was further commented that:

"it Is not claimed that Loder [the author of "Serious Family

Polka"] is the author of the melody or air; but simply by

skill and labor he has adapted it to a new use, or to a new

instrument, the pianoforte, for instance, ihstoad of the

- • 1 • . _ ‘ -i* > fl| * % 1 ■ * •• , i

i

- 28 -

clarinet." Whatever value is attached to what the court said
in the above case must bo tempered by the fact that the court's
words were but dictum. The court suspended the decision on
the motion for injunction bocause the evidence on this part
of the case was conflicting "and not sufficiently full to en-
able us to determine on which side thh truth lies."

Under the present Act no court could possibly conclude
that the work by Loder, if actually an arrangement, was not
a new musical composition. Clearly such work is not the mere
transposition of key but actually a new version for which pro-
vision is made in Section 6 of the Act. The Copyright Act of
1831 in force at the time Of the infringement contained no
specific provision that arrangements or other new versions of
works were subject to Copyright as is now found in the present
Act. The Rogi^ter of Copyrights in citing this case with ap-
proval made no comment that tho Copyright Act and tho Rules
and Regulations of tho Copyright Office in force at the timo
of his roport both provided that arrangements wore new works,
subject to copyright.

In Cooper v. Jamos, 213 P. 871 (N.D. Ga., 19li|.) , tho
court quoted with approval the words of Mr. Justice Nelson in
Jollie v. Jacques that the musical composition contemplated
by the statute must be a new and original work. But hero again
the editing of music did not enter the issue. The question
simply was whether an alto part added to the soprano, tenor

- 29 -

and bass parts then in the public domain constituted new musi-
cal composition.. The decision was in the negative.

Nowhere in the above mentioned cases is there any refer-
ence to the editing of music. The same is true of the remain-
ing cases cited in Col. Bouvi's report. In Norden v, Oliver
Ditson Co., Inc., 13 F. Supp. 1+15 » (D. Mass., 1936 ), the

court quoted with approval statements from the caso of Jollie
v. Jaques and Cooper v. James holding that a chango or adapta-
tion of a musical composition in the public domain must rosult
in a new and original work. In its decision the Court said:

"A composition to be the subject of a copyright must have suf-
ficient originality to make it a new work rather than a copy
of the old with minor changes which any skilled musician might
make. It must be the result of some original or creative work.”
The Court further said: ”...in the instant case the plaintiff’s
music, being merely a copy with minor changes of music in the
public domain, was not copyrightable as such.”

In the case of Arnstein v. Edward B. Marks Music Corp.,

11 F. Supp, 535 , 536 (S.D.N.Y. ,1935), the Court said: "The
authorities I have examined state that a musical piece to bo
original, according to the usual definition applicable to a
situation such as is here presented, does not necessarily moan
it is an absolutely new production. For instance, a new arrange-
ment of an old piece may be copyrighted, providod it is more
than a mere copy with variations, and the same tost is to be
applied as in the case of patents; that is, it must indicate

- 30 -

an excrciso of invontivo genius as distinguished from more
mechanical skill or change.”

The Court was correct in holding that a now vorsion
created by an author in some form of writing, such as an arr
rangoment of a previously published musical composition, was
a new work subject to copyright. The Court’s analogy between
copyright law and patent law, however, is open to quostion.

The copyright law requires originality in the author’s writing,
but never novelty or invention. Ball, in his "Law of Copyright
and Literary Property" ( l^ipLp, pg. Ill) states: "In fact the
Register of Copyrights does, not attempt to determine either
the originality or novelty of a subject submitted for copyright;
but the Patent Office would not be justified in issuing letters
patent for, an invention or discovery without making a thorough
examination of the novelty of the subject for which a patent
is claimed,"

The forogoing cases wore cited by Col. Bouvi to support
the argument that the editing of music is not the original,
creative and copyrightable writing of an author. But that
such conclusion is soundly based, oithor in fact or in law,
there is extreme doubt. Tho Copyright Office, which possesses
no judicial functions, should certainly rosolvo tho doubt in
favor of the copyright claimant and let the courts decide the

' ■ ’ f

validity of the copyright claim when tho issue arises. Such
action is not only logical, but very practical; and that fact
is best emphasized by Shaftor in his ^Musical Copyright"

- 31 -

(2d Ed,, 1939* PP» 42, 43) » Ho states that: "Originality has
been designated to be 'alone the tost of validity' [citing
Prod Fisher, Inc., v, Dillingham et al., 298 P. l45 (S.D.N.Y. ,
1924)], but if this rule were rigidly maintained, the Copyright
Office would, in all probability, bo forced to return every
musical application sent to it,"

The form of writing identified as "editing of music" has
been confused with that class of writing known as "musical
composition," This possibly explains why the conclusions have
been reached that editing is not creative work; that it does
not bring into being now musical composition. The first con-
clusion is false. Editing of music can be the creative writing
of an author. The second conclusion is true, in that editing
of music is a different class of writing from musical composi-
tion, as will bo demonstrated in the discussion of the next
argument, "Editing is not musical composition."

ARGUMENT : Editing is not musical composition

It is contended by those who dony that copyright con
cover the editing of music that such editing ddcs not rosult
in new musical composition and hence cannot be considered an
adaptation, arrangement, "or other versions of works" for which
copyright can bo secured under Section 6 of the Copyright Act
of I 9 O 9 .

Editing of music is not and can hardly be now musical
composition if the editor is faithful to the duty he is to

- 32 -

perform. He should do no more than to interpret or instruct
how the musical composition should bo studied and played. Ho
can by his creative ability, skill experience and labor make
extensive use of the many symbols and forms of notation which
are afforded him to express his ideas as to direction, inter-
pretation, and the like. In any event true editing does not
consist of the creation of new musical composition.

Admitting that the faithful editing of music is not now
musical composition, but at the same time recognizing that it
is a writing resulting from tho labor and skill of the editor,
then can it be actually concluded, as a matter of law, that
mere editing, fingering, or phrasing of music is not provided
for in tho Copyright Act? If editing of music is not musical
composition, then what class of work is it? It is clearly in
the nature of instruction and clarification which if written
in tho form of toxt matter and separately published would,
without doubt, bo classed as a book. It has boon said that:
"There is also a kind of arrangement in tho case whore someone
provides an existing musical score with signs indicating the
shading, tho tempo, tho phrasing, the fingoring, etc. That
kind of work cannot bo protected as a musical production; yot
tho whole of such signs, added to a scoro, might bo protected
by a literary copyright, liko a comment. Such work does not
give to the musical work a now form, different from the origi-
nal ono (like an adaptation does); it doos not create something
new in tho field of tho musical art; it only alms at bringing

- 33 -

out a rendering which will agree with the not fully exp Ire seed
will of the composer,'* and further that: "The notation of
these signs is ip the nature of a literary work^ not a musical
work. True, it deals with music; actually it is like a musical
essay, in TAfoich a composition is analyzed and some hints for
the interpretation are given; no one would consider such essay
as a musical work from a legal viewpoint..." [Philipp Allfeld,
in his commentary on the German copyright law, (1902, pg. 59)*
See bibliography for title and publisher].

It has already been argued that registration of a copy-
right claim to the writing of an author, coming within the pro-
visions of the Copyright Act, could not be denied merely for
want of a specific classification, and it appears as a matter
of law that such reasoning is well founded. The problem of
classification is mainly one of administration within the Copy-
right Office, in the House of representatives Committee report
(60th Cong. 2d Sess., rept. 2222) on the bill enacting the Copy
right Act of I 9 O 9 , the following comment was made in reference
to the list of classes of works contained in the Act: "Section
5 refers solely to a classification made for the convenience of
tho copyright office and those applying for copyrights."

Class E, musical composition, is the logical category
under which the edited work should be registered, for the pur-
pose of practically and conveniently carrying out procedures
both in the Copyright Office and the Library of Congress. But
if it Is held that the "editing" is a work which falls under

r

-Six-
ths broad classification of book, the applicant for registra-
tion would be required to furnish an affidavit of manufacture,
provided by Section 15 of the Qopyright Act. Not all literary
works are books. Dramas ana literary works, yet an affidavit
of United States manufacture jaeed not bd furnished for dramatic
compositions registered under Class D of Section 5 °f 'the Act.
The ’'editing 11 £3 so closely related to the music which it clari-
fies that anyone endeavoring to locate the facts of registration
would logically examine the Music Catalog; and anyone desiring
to inspect the copy would seek it where tnusical compositions
are normally located, not where one would expect to find books.

A final determination of this question of classification is not
necessary for the purpose of this study.

ARGUMENT : The use of the copyright notice upon works
in the public, domain misleads the publi’c

The Holy Bible is in the public doiiain under our copyright
law. Anyone may make copies of it, translate it, or make any
other use of it. Yet there are many editions which can be
found on the shelves of book stores and libraries bearing a
copyright notice. Those editions probably contain some new
matter, such as indices, annotations, maps and the like. Sec-
tion 6 of the Act of I 9 O 9 provides: "That ... works republish-
ed with now matter, shall be regarded as now works subject to

%

copyright under the provisions of this Act." Tho same Act
provides that to secure the copyright to the new matter when

1

- 35 -

the proprietor publishes it, all he need do is to place the
correct copyright notice upon the work; the same form of notice
he would have used if the work were entirely original. If there
is any doubt as to the correct position of tho notice (reviving

* I 'r » - , * *

the question whether the editing should be registered as Class
A, book, or Class E, musical composition), the solution can be
found by the placing of the notice on the title page of the
work and avoiding either of the alternatives; that is, tho verso
of the title page in the case of a book, and the first page of
music, if it be a musical composition.

It is not believed that the public is greatly mislead, as
a general rule, in regard to the copyright proprietorship claim-
ed in editions of the Bible. But what about other works in the
public domain, such as Mark Twain's ’’Torn Sawyer”, Lewis Carroll's
"Alice's Adventures in Wonderland” and othors? Certain editions
of these works containing new matter are published today with
a copyright notice. The proprietor is entitled under the pro-
visions of the Copyright Act to do so, for the same reason. as
in the case of the Bible: he wants to protect the new matter ho
has added, be it pictorial or text. The law gives him this
right. The usual copyright notice is sufficient; ho need not
specify in the work to what precise matter his claim is mado.
Granting that thero are instances when this will be misleading
and doter some from using the original work, yet the public is
not without a means to ascertain the extent of the copyright.
Comparison with the original edition or a search in the Copy-

- 56 -

right Offico records would normally disclose this information.

How then is tho situation different in the case of edited
music, the original composition being in the public domain?
Assuming that tho editing of music is copyrightable, then there
is no difference.

Col. Bouvd in his forty- fourth annual report, to which

reference has already been made, gives three main roasons why

*

the Copyright Office should not register copyright claims to
edited music, when the claim is limited to "editing":

1. To make such registration would render the records
contained in the Copyright Office a "crazy quilt" of claims to
material which is copyrightable and material which is not and
thus defeat the clear purpose of Congress in its effort to ob-
tain an official record of claims of copyrightable matter.

2. If registration were made, the Copyright Offico,
as a branch of the Government of the United States, would con-
sciously render itself a party to misleading the public.

3. If such registration were made, tho public could
never with security claim to have a free right of user in such
classical music in the public domain.

If the editing of music is subject to protoction under
the provisions of tho Copyright Act these roasons can offer no
justification in law for the refusal of the Register of Copy-
rights to record a copyright claim to tho editing of music.

But it is in these reasons, particularly the third, that we find
the cause for Col. Bouv6*s sincere and untiring efforts to de-
\

r •

- 37 -

fend what he believed an infringement upon the right of the
public to use freely, without any fear Whatsoever, tho works in
the public domain. Col. BouvS was both a lawyer and a musician
ahd it would indeed be unfair and unappreciative if one were
to say that his opinions in regard to editing of music did not
deserve thoughtful consideration. He conscientiously- adhered
to his views on the subject throughout his adn ini strati on of
tho Copyright Office from 19 3^ to IjkJt tohich ended a few weeks
before his doath.

Section 1 (o) of the Copyright Act of* 1909 provides that
the copyright owner has the exclusive right to perform the copy-
righted work publicly for profit if it be a musical composition.
The argument has tjeon advanced that musical compositions in the

ppblic domain are odited and republished with a copyright notice,
✓

and that such notice has the effect of "scaring off” the members
of the public who would want to perform the composition for pro-
fit. Tho same might bo said if one were to translate the words
of such musical compositions, or annotate one of Shakespeare's
plays. Such new versions of works which arc in the public do-
main may bo published with the usual copyright notice thoro
being no requirement that the notice also include a statement
which specifies to what portion .of the work the copyright claim
i s made .

The copyright claimant to the editing does not own any-
thing more* than that which tho author of the editing has created.

- 53 -

It has been said that tho editing of music is not musical com-
position. If that be true, which the arguments thus far ad-
vanced would substantiate, then Soction 1 (e) does not have
application.

The Copyright Office can not ignore tho express provisions
of the Copyright Act in order to assume tho doubtful position of
guardian of the rights of the public in the use of copyrighted
works, particularly those In tho public domain. The user of
music has access to the law. He, with the advice of his legal
counsel, should decide what rights the public possesses in any
particular work and what rights are owned by the copyright
claimant who has placed his notice upon it. More inconvenienco
or the inability to ascertain one's rights to the use of a work,
offers no valid reason to deny the editor of music the copyright
to which ho may be entitled under the law. Congress has specif-
ically providod in Soction 6 of the Copyright Act of I9O9 that
new versions of works in the public domain or works republished
with new matter 11 shall bo regarded as now works subject to copy-
right under the provisions of this Act; but the publication of
any such new works shall not..,, be construed to imply an ex-
clusive right to such use of tho original works, or to secure'
or extend copyright in such original works.” If tho law is to
bo amended to remedy evils such as those suggested by Col. Bouv6,
the amendments must be made through regular legislative channels
and not by administrative action.

- 39 -

CONCLUSIONS

This study of the subject of copyright in the odit-
ing of music leads the writer to thro following conclusions

1. That the editing of music can well be the croa-
tive and original writing of an author which promotes the
progress of science and the useful arts.

2. That such writing is subject to a claim of copy-
right under the provisions of the Copyright Act of 1909,
made pursuant to Article I, Section 8, Clause 8, of the
Constitution of the United States.

3. That after copyright has been secured by com-
pliance with the provisions of the Act, the copyright
proprietor is entitled, as a matter of law, to register
his copyright claim in the United States Copyright Office.

i|. That the Copyright Offico has no judicial power
to pass upon the substantive rights of a copyright pro-
prietor and must, as provided by law, register copyright
claims to works deposited in the Copyright Office under
the provisions of the Act.

- ko -

Conclusions (Continuod)

5« That tho question of classification undor which
copyright claims to tho editing of music are to bo re-
corded is primarily an administrative problem of the
Copyright Office, the solution of which cannot invalidate
or impair the copyright protection secured undor the Act,
nor tho right of the public to uso works in the public
domain.

6 . That the editing of music is not '•musical com-
position" and hence the provisions of Section 1 (e) of
Act have no application to. such editing.

7 . That the Act authorizes t.he use of the copy-
right notice upon works entitled to protection under its
provisions without any requirement that the notice define
the extent of tho claim.

tr

COPYRIGHT IN THE EDITING OP MUSIC

APPENDIX

I, Authorities Pages

Cases :

Arnstein v. Edward B. Harks Husic Corp,, 11 P, Supp, 535

(S.D.N.Y., 1955); affirmed, 82 F.(2d) 275 (C.C. A. 2 , 1936 ) . 29

Boosey v, ^/hight (I 899 ) 1 Ch. 836 ; on appeal, (I 9 OO)

1 Ch. 122 , , 9

Burrow-Giles Lithographic Co, v, Napoleon Sarony,

111 U. s. 53 ( 1881 ;)....,..., 17

Cooper v. James, 213 F« 87 I (N.D.Ga., 1914) 28, 29

Fred Pisher, Inc. v, Dillingham et al., 298 F. 145

(S.D.N.Y., 1921;) 31

Charles M , Higgins et al, v. ’/illian D. Keuffel et al.,
ll*.0 U.S. k2B ( 1891 )

18

Jollie v. Jaques, 1 Blatchf. 6 l 8 (I 85 O)

Fed. Cas* No. 7,437 27 , 28, 29

Norden v, Oliver DitsonCo,, Inc., 13 F Supp. I 4 . 1 5

(D, Mass., 1936 ).....

29

Statutes (United States ) :

Copyright Act of 1909, as amended (17 IT.'S.C. I- 65 ) :

Section 1(e) 37, 38

Section 1; 7, 21;

Section 5 7, -21;, 33, 34

Section 6 ...... 4, 5, 28, 31, 34, 38

Section 15 * 34

Section 53 . 24

Authorities (Continued) Pages

Statutes (United States) :

General Reference:

*

Copyright Act of 1790 (1 Stat. L. I2lp-126) . 6

Copyright Act of 1831 < 1*. Stat. L. 436“lp39) 28

Copyright- Act of I9O9 (17 U.S.C. 1-65) Ip, 6, 22, 26, 28, 58

Statutes (Great Britain) :

General Reference:

Copyright Act of l8ip2 ( 5 & 6 Viet., C. Ip5) 11, 12

Copyright Act of- I9H (1 & 2 Geo. 5, C. I4.6 ) lip

Miscellaneous :

Constitution of the United States^, Article I, Section

8, Clause 8 6, 18, 39

House of Representatives Committee Report on Bill
enacting Copyright Act of IGO9 ( 60 th Congress,

2d Session, Report No. 2222). 7, 25, 33

Rules and Regulations for the Registration of Claims
to, Copyright (Copyright Office Bulletin No. 15,

1927 ed.) 4 .

Code of Federal Regulations (37 C.F.R. 20ip. ip [5 ]).,... 5

Same, as amended in 193^,(37 CFR Cum. Supp, 201.4(b) (5). 6

Forty-fourth Annual Report of the Register of Copy-
rights for the fiscal year ending June 30, 19^1 26, 36

Allfeld, . [Commentary on German Copyright Law, (1902)

see bibliography, this appendix, for Gorman title].. 33

Ball, Law of Copyright and Literary Property ( 19ipip) • • • 30

Copinger on the Law of Copyright, 7^ Ed. (193&) 13

Drone, Law of Property in Intellectual Productions (1879) 23

Shafter, Musical Copyright (2d ed., 1939) 22-, 23, 3°

Weil, American Copyright Law (1917) 19, 25

II, BIBLIOGRAPHY ON COPYRIGHT

•

Allfeld, Philipp: "Kommentar zu den gesetzen vom 19* juni 1901,
betreffend das urheberrecht an werken der literatur und der
tonkumst und uber das verlagsrecht, sowie zu den internationalen
vertragen gum schutze des urheberrechts", C. H. Beck, ^unchen, 1902 ^

Amdur, Leon H.; "Copyright Law and Practice", Clark, Boardman ft
Co., Ltd,, New York f 1936,

Ball, Horace G,t "The Law of Copyright and Literary Property",
Matthew Bender ft Co,., Inc., New York, 1944*

Bowker, Richard Rogers: "Copyright Its History and Its Law."
Houghton Mifflin Co., 1912.

"Copinger on the Law of Copyright", (7th ed. by P. E. Skone
James) Sweet ft Maxwell, Ltd., London, 1936*

Curtis, George Ticknor; "A Treatise on the Law of Copyright",

Little ft Brown, Boston, 1847*

!

DeWolf, Richard C.: "An Outline of Copyright Law", John W. Luce
& Co., Boston, 1925»

Drone, Eaton S.j "A Treatise on the Law of Property in Intellectual
Productions in Great Britain and the United States", Little, Brown
ft Co., Boston, 1879 *

Fox, Harold G.: "The Canadian Law of Copyright", University of
Toronto Press, Toronto, 1944*

Howell, Herbert A.: "The Copyright Law", Bureau of National
Affairs, Inc., Washington, 1942 .

Ladas, Stephen P.; "The International Protection of Literary and
Artistic Property", The Macmillan Co., New York, 1938*

MacGillivray, E. J.; "A Treatise Upon the Law of Copyright", John
Murray, London, 1902.

Putnam, George Haven: "The Question of Copyright", J . P. Putnam's
Sons, New York, 1896.

Richardson, J. B.: "The Law of Copyright", Jordan ft Sons, Ltd.,
London, 1913*

Robertson, George Stuart: "The Law of Copyright", Clarendon Press,
Oxford, 1912.

Shafter, Alfred M. : "Musical Copyright" (2d ed.), Callaghan and
Co., Chicago, 1959 •

Weil, Arthur Vi,* "The American Copyright Law", Callaghan and Co.
Chicago, 1917*

III. ILLUSTRATIONS OF EDITED MUSIC

•The illustrations (1) and (2) of edited music shown
on the two pages foil' owing demonstrate the utter im-
possibility of the editor of music presenting a usable
edition if ho is denied the opportunity to express his
thoughts in a condensed or abridge^ manner by the use
of symbols placed in juxtaposition to the notes to which
his instruction applies. This Is not only true of the
editor but also of the original composer who desires to
include instruction as to how tho musip should be
rendered.

It Is to be noted that tho text which is usod as a.
translation of the symbols of the editor does not account
for tho fingering marks shown by numerals above the notes.
It would be necessary, to indicate the proper fingering,
to add at least an additional paragraph to each
illustration.

Illustrations of Edited Music (Continued)

(1) Beethoven's "Sonate Pathetique"

In I 89 I Edw. Schuberth and ; Co. published an edited ver-
sion of Beethoven ' 3 "Senate Pathetique" bearing a copyright
notice in their name. The complete sonata consists of 59^
measures, 75 measures of which formed the Adagio Cantabile.
The illustration given below is vhe first two measures of the
Adagio .

^ y j , . *

ft*.

*?.

> si i

i "

&

-Sk&z- ~ ■

J

*- ■ -*x -.«—•* * — ,

+ 3 ^.

. s&.

S- t 2>[ S> : .

lxI j r :

tsl

/ji..** r.

< A' r

1 i

, i

1:

-J

- fii.

. ... . _

lr

rj- •

1

i

t ~

• 1

-£ _

/■

If text had been used instead of the "shorthand" symbols,
an editor would be compelled to place -immediately beneath these
two measures a paragraph which would read somewhat as follows;

Slowly songlixo. Metronome at oO, 1 beat to each eighth
note. Principal Subject. The upper tones in the right hand,
being the melody, must stand out distinctly against the accom-
paniment yet pleadingly. In the accompaniment the longer notes
in the bass are played somewhat more loudly and the middle
voices should be piayed quite softly. In the joint signs of
expression, namely the crescendo, beginning with the second in-
terval in the right hand, and the decrescendo beginning with
the 1st interval in the 2nd measure and ending on the last single
tone in that measure, all voices should Increase and diminish
in proportion.

Illustrations of Edited Music (Continued)

(2) Chopin's "Prelude No. 6, B minor"

Another Illustration of edited music is one from Chopin’s
"Prelude No. 6, B minor" published in I9O9 with a copyright
notice in the name of Bote b Bock. The complete Prelude Con-
sists of 26 measures of which the first 2 have been selected.

> 'tv

/_

. :*

, 'A'- ■

. JL.X

I !

\:

)i !

- Wl i

- &—•&>

&

■~4- ■■ — <*-

*f4-

; v- 1 I .

a:1;

V i

' J

as

i!

3.'] ‘

'Os. ' :

3

&

Igs V *•

f r

F

is

j _

7

1

3 !

-©•* ~\

- ... — . L- r-t,.

2-4

Z2.I7T

jp~ '-aT i

-4zCl

Here again considerable instructive text would be required
by the editor In lieu of the use of his symbols well known to
all musicians. He would probably be compelled to write:

Very slowly. Instructions for right hand? the chords and
intervals should be slightly accented while the repeated single
notes should be played more softly with a slight staccato touch.
The right hand, being the accompaniment should be kept soft.
Instructions for left hand: The melody beginning softly in -
creases to a moderate crescendo then decreases. In order to
preserve the perfect legato the phrase extends from the first
note in 1st measure through "C" in the 2nd measure. In the 2nd
measure the 2nd finger plays "B" and the 1st finger is quickly
substituted that the perfect legato may not be broken.-

IV. EXCERPT FROM THE WRITINGS OF AUTHORS ON SUBJECTS

HaViNg REFERENCE to the editing of music

I. Music editing is a form of writing in the
nature of shorthand

"Some accurate knowledge of the manifold and various
stenographic signs of ornaments - -grace s , groppi, tremoli,
tremblemens, agrem^ns, manieren is indispensable to the
student .' 1 DANNREUTHER , MUSICAL ORNAMENTATION ( 3 rd (n.d.}
viii)

i

"Elaborate ornaments — the quaint "double -relish, " the
"elevation, 1 ’ for instance--are also carefully written out,
note for note; but for the simpler graces, such as short
shakes, mordents, beats (short appoggiature from below or
above), and the slur or slide, they employ a stenographic
sign--which amounts to no more than ope or two little slant-
ing lines drawn through the stem of the note, and of which
the latter is the form most frequently 1 met with.” (Same,ix)

"These signs are, so far as the writer is aware, the
earliest instances of a species of stenography employed to
indicate ornaments in music for keyed instruments." (Same,ix)

■i

"Musical notation attempts to do far more than is ever
undertaken by ordinary verbal typography, and for that reason
is far more complicated in its characters and their varied
applications. The problem of using its apparatus so as to
communicate the intended meaning clearly and yet economically
is not simple." Pratt, The question of musical editing*- its
theoretical aspects’ (1913) MUSIC TEACHERS NATIONAL ASSOCIA-
TION PROCEEDINGS 63 .

"There is available an array of symbols and signs which
the composer may use to indicate the varying fluctuations in
tempo, grades of loudness and quality of tone, but usually
the composer contents himself with a few general outline in-
dications, such as ritardando, accellerando, crescendo,
diminundo, forte, mezzo-forte, piano, sfz., etc." Becker,
Musical demarcations and inflections (June 193^-) 3 MUSICAL
REVIEW No. 5,5.

- J4S -

Music editing is a form of writing in .
Nature of shorthand (Continued)

It is fundamental to any symbolized scheme of music that
there should be at least a staff, a clef and some notes. To
these essentials have been added numerous accessory marks and
devices, such as the slur, the dot, the bar, the rest, to aid
the reader to an easier and more felicitous understanding..."
VENABLE, THE INTERPRETATION OP PIANO MUSIC (1913) 2.

f, The notation used in writing music for the pianoforte
might aptly be called musical shorthand. Often representing
solely the simplest way of writing a musical thought, it may
also include suggestions in regard to the manner of perfor-
mance, and the complications and inadequacies of a notation
addressing two- senses, hearing and touch, and symbolical both
of effects for the ear and of directions to fingers and foot,
are among the difficulties with which the pianist contends.
Sometimes the sound is more fully expressed by the musical
characters than is the mode of execution, and sometimes vice
versa, the rendition being the same in both cases. As a
passage may therefore be notated in many different ways, a
thorough and comprehensive knowledge of the language of
music is essential in order to perceive from the context the
true significance of every note .’ 1 (Same, 8 )

# # Vi

"It might bo supposed that in music, with all its dia-
critical marks — f, p, sf, stacc., leg., rail., accel., and
a dozen more--it would be easier to get the phrasing right
than with words, which have no such marks. But written words
have none because, however many they had, they would never
be able to convey to paper the subtleties of the speaking
voice. Music set to words dispenses with these marks on the
whole, and when it is independent of them economises as far
as possible, because otherwise it would soon look (as in some
editions it does look) like a page of Conington' s Virgil--
four lines of text to forty of comment; only worse, because
the comment has to be interwoven with the text, and that soon
leads to much corruption and many various readings." Fox-
Strangways, Phrasing (Jan. 1928 )* 9 MUSIC AND LETTERS No. 1,1*

* s-

2. Editing of music is created by the intellectual
labor and skill of an experienced and accompli-
shed musician.

"Interpretive musical art is thus often genuinely crea-
tive in character. It is, admittedly, the art of elaboration
and is therefore a creative process of lower order than that
of the composer proper, but it is of groat value and useful-
ness nevertheless and not to be lightly esteemed." REDFIELD,
MUSIC: A SCIENCE AND AN ART (I 928 ) l 6 l.

# # #

"Several positive signs of progress in the efficacy and
new practical value of our methods of studying the. piano are
before us. This is an age of specialties. The American has
made quite as intelligent and minute analysis of every ele-
ment entering into the study of musical theory and practice,
as regards harmony, rhythm, phrasing, dynamics, damper-pedal,
esthetic and omotion.al qualities, artistic delivery, etc.,
as have been made elsewhere. In the line of making special
studies of the player’s physical training and the adaptabil-
ity of his nerves and muscles, independent possibilities of
the player ' s • arms , wrists, knuckles, and fingers, as related
to expressive playing and interpretation, as well as brilliant
execution, we are doing work that has not been done elsewhere.
Shorwood, American Music teaching (Jan. I 9 O 3 ) 21 THE ETUDE
No. 1, 12.

* #

"A poem may have a perfectly different emotional effect
on one man and on anothor. If that is true of words, how
much more must it apply to music, and how much more, again,
to words and music togethor. The combination of the two
makes perhaps, the strongest emotional appoal that we know
to the individual, and his response thereto depends on his
temperament, intelligence and equipment. In no two men are
these alike. Interpretation is, therefore, essentially in-
dividual." GREENE, INTERPRETATION IN SONG (1912) 2-3-

- 50 -

Editing of music is created by the intellectual
labor and skill of on experienced and accomplished
musician, (Continued).

"Of the many mon who have taken up the task of editing
our standard etudes and concertos, how many, we are tempted
to ask, have realized the responsibility they havo thus
assumed? How many, indeed, give a second thought to the
peculiarly delicate nature of such work, its numerous diffi-
culties, and, above all, to the grave effect on the student-
world resulting from inefficiency and unsound judgment?"
Lehmann, The responsibility of editing (Aug. 190l|.} 22 THE
ETUDE No. 8, 330-1.

* *

"if we carefully examine the various editions of the
great composers, we discover that editors greatly differ as
to tho choice of fingers for certain passages." Brower, The
art of fingering (Mar. I9I5) 20 THE MUSICIAN No. 3, l6ip. '

* # -K-

"Tho responsibilities of one who undertakes tho editor-
ship of the work of a deceased musician are many and serious;
he is bound to present tho text in its integrity, correcting
of course any obvious clerical error, and where any point of
ambiguity or doubt arises to call attention to it, and, if
he please, suggest such an emendation as would appear in his
judgment to carry out the intontions and exact meaning of the
author." Cummings, The mutilation of a masterpiece (1903-
190)4.) PROCEEDINGS OP THE MUSICAL ASSOCIATION, 11 3.

* #

»

- 51 -

5. Editing of music is useful, both
in the study of a composition and
in its rendition.

"If the beginner has been carefully taught to perceive
that all the details of the printed page are signs denoting
specific directions about phrasing qualifications, he should
have no trouble in gradually assimilating phrasing know-
ledge. He will soon be acquiring definite musical speech."
Borns che in. The Elements of phrasing (Oct. 1915) 20 THE
MUSICIAN No. 10, 668.

•i't it &

"Phrasing is fundamentally the same in music and in
speech. The means, too, are the same in both. The differ-
ence is solely one of degree. Without phrasing, speech as
well as music is unintelligible and inexpressive. Do not
forget that both the intellect and the emotions are con-
cerned. It is generally assumed that there are two means
employed in phrasing, namely. Accentuation and Punctuation.
These are certainly the most important, the least dispens-
able. But there is a third one which especially plays a
part of immense consequence wherever emotion is involved,
and that is Tempo, rate of movement. Observe attentively
the speech of a good actor, reciter or orator, ,and you will
easily notice those throe factors; Accentuation, with vary-
ing force of certain words and syllables; Punctuation, by
pauses of varying longth; and Tempo, varying rate of move-
ment, which movement may be steady or gradually quickoning
or slackening, and modified momentarily. The incorrect use
of these factors obscures, alters and even dostroys the in-
tended meaning. In music we find the same — only, there
these factors are much more developed, having a larger com-
pass and an infinitely finer gradation." Niecks, What every
student should know about phrasing. (Oct. 1916 ) 34 THE ETtfDE
No. 10, 705 .

"The nearest parallel in literature to an edited musi-
cal work is a copy of a poem as prepared for the uso of a
pupil in elocution who wishos to present the poem in public;
or a drama as wanked out by actors, one may road a poom

- 52 -

Editing of music is useful, etc.
( Continued) .

inaudibly and understand it, but the voice of the roador
or recitalist is far more eloquent; a drama may be read
in the quiet of one's firoside, but tho version of tho
master-actor on the stage is far superior." Baltzoll,

The question of musical editing its practical aspects

(1913) MUSIC TEACHERS NATIONAL ASSOCIATION, 7O-77.

“The principles underlying the different fingerings
used in piano music merit much more attention than they
often times receive, for upon the choice of a good or a
poor fingering depends to a great extent the general effect
of the passages that are played. It has repeatedly been
the experience of tho writer that whon a poor fingoring is
usod wrong notes arc played, or that the tempo is too slow,
or that wrong accents are given, or that the expression or
tone quality suffers. But the slightest change in tho
fingering often effects a groat improvement . “ Wilkes, How
to devise natural fingerings (June 19ll|.) 32 THE ETUDE 6, l£7»

# Vt

\

“It is a paradoxical state of affairs which includes
accurate pedalling as one of tho chief factors in artistic
pianoforte playing, and at the same time affords the stu-
dent so little opportunity of gaining information upon the
subject. “ LINDO, PEDALLING IN PIANOFORTE (1922) ij..

K -*

“in his earlier stages it is necessary for the student
to follow carefully the teacher' s f ingeringx of his pieces
or the fingoring marked by the editor, if he has a reliable
edition. Such standard editions as Peters, Schirmer, Ditson,
and Steingraber, enlist the services of the most competent
teachers and artists to mark the fingering, which. is there-
fore entirely reliable for the student to follow, it is
only through careful regard for, and by thorough acquain-
tance with the methods of competent instructors that the
student can acquire an insight of his own. So in his early
stages he cannot bo too careful to follow tho fingering
given him." Rackle, Principles of fingering (Oct. 1913)

18 THE MUSICIAN No. 10, 66l.

# * #

I

Editing of music is useful, otc.
(Continued).

"We go on reprinting editions of the great masters,
with antiquated fingoring, no phrasing and, in most casos,
positively wrong pedal signs. Hero in the United States
one can begin to soo daylight. A number of publishers are
issuing reprints as woll as the original works of American
composers, edited with a care as to phrasing and accurate
pedal signs which compare favorably wi th the work done by
the best German editors.” Weber, Phrasing and phrased
editions (Sept., Oct. I 9 I 5 ) 3 THE MUSICIANS JOURNAL
Nos. 5 / 6 , 10.

"The understanding and practice of correct 'Phrasing 1
is of the greatest importance to all true lovers of music.
Without it, mcJLody is pointless and tastoloss and harmony
degenerates into mere tolerable noise." Noto, On Finger-
ing (May 1908 ) 19 THE STRAD No. 217, 13 .

it it «•

"Take the aaso of the pianoforte teacher. Only one in
a hundred pupils is capable of discovering how an unmarkod
piece should bo played, of deciding tempi, dynamics, phrasing,
etc., let alone fingering. If the teacher marks all these
himself, it results, in a lamentable expenditure of time.

He is driven to seok editions which present old music in such
a way that the avorage pupil is helped to interpret it."
Whittaker, The Business of a musical editor (Doc. 1, 1932)

73 THE MUSICAL TIMES AND SINGING-CLASS No. IO 78 , lOfi*.

it it it

"Almost any good standard instruction book for the
cello has its exercises and scales correctly fingered, and
if followed implicitly would keep the pupil from going far
wrong..." Venuto, The Fingering of the violoncello (Aug.
1917) 35 THE ETUDE No. 8 , 557 .

it it it

"There is a decided advantage in adding some practical
printed fingering, some pedal indications, or a few

- -

Editing of music is useful, etc.
( Continued) .

illustrations of embellishments to compositions which are
chiefly placed in the hands of pupils. Such an addition
saves time in the lesson hour, is an aid in the home work
of the student and can bo well utilizod for the establish-
ment of good habits of playing." Faelton, Modern editing
of pianoforto music and its encroachments on staff notation
(Sept. 1899) 16 MUSIC No. 5, ij.33.

■k-

"Musical notation has changed much during the centuries.
If we published works composed before 1600 as they were
written originally, few musicians would be able to use our
edi ti on.

"In order to make an edition intelligible to tho musi-
cian of today, wo must transcribe tho music into the nota-
tion which is familiar to the modern singer and player. But
an exact transcription would include notes of unusual value,
measures of incredible length and no marks of expression to
indicate how tho music is to bo performed; certainly few
people would be able to use such an edition." David, Problems
of editing old music, AMERICAN MUSICOLOGICAL SOCIETY PAPERS

(1937) 2k

"Wo now come to tho printed musical markings of the
song, wherein the composer’s interpretative intention is
set forth. Yot song-makers of today — or even yesterday —
are not so lavish in their use of those helpful interpreta-
tive devices as are and wore the composers for instrumental
compositions." Henley, Nuance, the soul of song (Oct. 1937)

55 ETUDE No. 10, 671 +- 5 *

*

"In many of these compositions hardly any attempt is
made to write correct bowings. I have in mind a series of
arrangement from operas, which have been sold by tho millon
all ovor this country, which aro 30 ridiculously deficient

55

Editing of music is useful, etc.
( Continued) .

in tho bowing marks and proper slurring, that it seems as
if the publisher had given the job to tho office boy, who
daubed a lot of slur marks with mucilagd and threw them at
tho pago, leaving them to stick wherever they foil. Tons
and tons of sheet music violin pieces, whore tho bowing is
either not marked at all or marked incorrectly, are boing
sold every year, and as they fall for tho most part into
tho hands of players who do not know how to correct thorn,
the mischief which is caused is incalculable. I do not
know of any one cause which holds back tho progress of the
violin art more than this one of badly marked violin music.
However, there has been considerable improvement of late
in this respect and our loading publishers are paying moro
attention to having their violin compositions oditod by good
violinists.” Braine, The Importance of carefully edited.
Bowings (June I91I+) 32 THE ETUDE No. 6, 1+61+ .

it it it

"For us pianists the interest in tho matter centers, of
course, in the development of keyboard instruments. If wo
wish to trace the history of fingering, we must begin with
the doings of our ancestors, the organists, vho were tho
first to attempt tho taming of ton unrhly digits in tho
service of keyboard efficiency. A long cry It is from those
dark days of fingering in tho sixteenth century, when churchly
musicians used, fairly to pummel tho keys of their instruments
with their fists (the keys were some throe to six inchos
broad, stubborn in proportion, and would yield to no other
sort of treatment), to tho time of our modern concert grand,
with its finely-balanced mechanism, sensitively respondent
to every slight impulse from the hand’ of the player. Tho
gradual improvement in keyboard construction, and the in-
creased technical ability domandod from performers by com-
posers as the art advanced, wore two factors which could
not but bring about a corresponding development in finger-
ing.” Hughes, Fingering at tho pianoforto (May 1917) 22
THE MUSICIAN No. 5, 336 .

it it it